While we Were Sleeping – The Choice on Termination of Pregnancy Amendment Draft Bill as an Act of Indirect Discrimination? Discussion of the Choice on Termination of Pregnancy Amendment Draft Bill [PMB-2017]

by | Oct 28, 2019 | SLR, SLR V29 I1

While we Were Sleeping – The Choice on Termination of Pregnancy Amendment Draft Bill as an Act of Indirect Discrimination? Discussion of the Choice on Termination of Pregnancy Amendment Draft Bill [PMB-2017]

Authors Sheena Swemmer

ISSN: 1996-2193
Affiliations: Attorney and Gender Researcher: Centre for Applied Legal Studies, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 107 – 123

Abstract

This note focuses on certain proposed amendments to the Choice on Termination of Pregnancy Act 92 of 1996 ("the Act") as proposed by MP Dudley in a private member’s bill, the Choice on Termination of Pregnancy Amendment Draft Bill ("the draft Bill"), and argues that these proposed amendments constitute a case of indirect discrimination as set out in section 9(3) of the Constitution and applied in the case of City Council of Pretoria v Walker. In order to support the argument that the proposed amendments are a case of indirect discrimination the importance of the Act is discussed with references to the history of the Act and the rights in the Bill of Rights, which the Act aims to realise. Following this, a brief history of the draft Bill is presented with reference to a similar draft bill being proposed by MP Dudley in 2010. The case of Walker and Harksen v Lane NO and Others is relied upon in order to sketch an appropriate approach to determining whether conduct should be considered as constituting indirect discrimination and three proposed amendments are analysed to determine whether they are instances of indirect discrimination. The three proposed amendments are: the change to the definition of "gestation period", the provision of mandatory counselling, and the provision of ultrasound photographs to be used in order for there to be "informed choice". In finding that the proposed amendments constitute acts of indirect discrimination in terms of the test set out in Harksen, I propose that the remedy for this discriminatory conduct should be the failure of the draft Bill to amend any part of the Act whatsoever. I also conclude by suggesting that a novel approach be taken to discipline political parties and members of parliament who have shown to continuously act in ways that directly or indirectly discriminate against a certain group, such as in this instance the MP Dudley’s continued focus on attempting to limit the reproductive rights of woman.

Teaching Sexual Offences Sensitively: Not a Capitulation but Good Pedagogy

by | Oct 28, 2019 | SLR, SLR V29 I1

Teaching Sexual Offences Sensitively: Not a Capitulation but Good Pedagogy

Authors Jameelah Omar

ISSN: 1996-2193
Affiliations: Lecturer, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 90 – 106

Abstract

Sexual offences form a part of the criminal law syllabus during the LLB programme at most South African law schools. All law graduates in South Africa should have the knowledge and skills to understand the nuances and sensitivities related to sexual offences. The option of avoiding the subject matter entirely is not viable given the prevalence of sexual offences in South Africa. Sexual offences are inherently uncomfortable to talk about. For some students, the discomfort of talking about sexual offences is actually secondary trauma as a result of their own past experiences or those of close family members or friends. This must be factored into how the law in this area is taught. The need to balance the social context with legal content is an ongoing debate in law schools, particularly considering the demand for decolonised syllabi. Lecturers of sexual offences must strive to do both: teach the technical law and introduce students to the intersectional issues of gender and power that is closely connected to the law on sexual offences. This article considers the importance of teaching sexual offences and affirms the need for reflection by lecturers on how sensitive topics have been taught historically. The article establishes several classroom practices that can mitigate secondary trauma, including how sexual offences should be assessed constructively. The legal profession is an important role player in the criminal justice system and includes defence lawyers, prosecutors, judicial officers and activists. The importance of the topic and how it is taught should form part of the training law students receive that prepares them to challenge rape culture in the practice of the law when they encounter it in their legal careers.

Property Rights and their Continued Open-Endedness – A Critical Discussion of Shoprite and the Constitutional Court’s Property Clause Jurisprudence

by | Oct 28, 2019 | SLR, SLR V29 I1

Property Rights and their Continued Open-Endedness – A Critical Discussion of Shoprite and the Constitutional Court’s Property Clause Jurisprudence

Authors Max du Plessis, Toni Palmer

ISSN: 1996-2193
Affiliations: Member of the Durban Bar Research Associate, University of KwaZulu-Natal; Member of the Durban Bar
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 73 – 89

Abstract

The article considers the 2015 Constitutional Court decision of Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism, Eastern Cape ("Shoprite"). While formally the case concerns a liquor licence, the authors contend that what is really of concern (and what is on display in the judgment) is an approach to section 25(1) of the Constitution that gives very little in the way of guidance, principles, or rules for the determination of property disputes. This context-sensitive review standard, which does not provide much in the way of principles delineating how competing values are to be reconciled, but rather doing so — and reaching outcomes — on an ad hoc basis began with First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v Minister of Finance and has continued since. The authors propose that this may have been a deliberate move by the Constitutional Court to carve out an almost unfettered discretion to decide property cases as it deems fit. This allows the Constitutional Court to reach outcomes in politically awkward cases which actively avoid confrontation with the political branches, whilst still adhering to legal principles and enforcing the Constitution, to the extent possible. Shoprite brings into sharp focus why such an approach is less than satisfying — not least of all since it results in three judges of the Constitutional Court, all applying what is ostensibly the same legal standard (section 25, and FNB), while being unable to agree on a single aspect of the section 25(1) analysis. The authors contend that an approach to constitutional adjudication that makes it difficult for lower court judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied, and to know, with some degree of certainty, that the basic law is going to be applied equally, constitutes a paradigmatic violation of the rule of law.

Gender Normalisation Surgery and the Best Interest of the Child in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I1

Gender Normalisation Surgery and the Best Interest of the Child in South Africa

Authors Rachel Sloth-Nielsen

ISSN: 1996-2193
Affiliations: None
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 48 – 72

Abstract

Children born with Intersex characteristics are routinely subjected to genital normalising surgery, with the decision to undergo this surgery being made by the child’s parents while they are still very young. The international community, including the United Nations ("UN"), has condemned these surgeries. In a ground-breaking decision, the Columbian Constitutional Court ruled that only the child can consent to the surgery and thus the surgery must be postponed until the child is able to consent. In the South African context, these surgeries violate the child’s dignity and autonomy. It is thus argued that these surgeries are not in the best interest of the child. The surgery should therefore not be performed until children themselves can consent in an informed manner.

Marital Rape and the Cultural Defence in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I1

Marital Rape and the Cultural Defence in South Africa

Authors Lea Mwambene, Helen Kruuse

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Western Cape; Senior Lecturer, Rhodes University
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 25 – 47

Abstract

In 2007 the Criminal Law (Sentencing) Amendment Act 38 of 2007 ("Sentencing Amendment Act"), read together with the Criminal Law (Sexual and Related Matters) Amendment Act 32 of 2007 ("Sexual Offences Amendment Act"), effectively took away an accused’s ability to lead cultural and religious evidence in sexual offence charges. This article questions whether it is right to simply legislate away these beliefs which may be necessary to establish the context of an offence. In particular, we question whether this prohibition advances or hinders the constitutional diversity project in South Africa. We further ask whether ignoring an aspect of an accused’s culpability (and his or her knowledge of unlawfulness) only serves to deepen the alienation that many South African indigenous people feel in relation to the legal system. We ask these questions in full knowledge of the seemingly insurmountable problems raised by allowing such evidence in court, particularly in the case of marital rape. For example, we recognise the possibility of the accused using his or her culture in an opportunistic and self-serving way. More seriously, we recognise that the use (and acceptance) of a cultural belief in South Africa could not only perpetuate stereotypes of reified, monolithic, "backward" cultures, but could also lead to racial essentialism which permits the subordination of women of colour in the name of ethnic differences. Being mindful of these problems, this article seeks to escape the simplistic conception of justice as one where "all persons are equal before the law". Instead, we recognise that this system may operate quite separately from people in an embedded community. In this light, we consider whether, in a charge of rape or sexual assault in a customary marriage setting, cultural beliefs can be led in a way that (1) does not essentialise culture; and/or (2) undermine women’s rights.

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

by | Oct 28, 2019 | SLR, SLR V29 I1

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

Authors Willem Gravett

ISSN: 1996-2193
Affiliations: Senior Lecturer, University of Pretoria
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 3 – 24

Abstract

Social science has been used with increasing success in a wide variety of human endeavours. For example, marketing, human relations and the delivery of health services are among the widely expanding applications of the classic disciplines of psychology, sociology, anthropology and social psychology. More recently, trial lawyers have also shown increased interest in applying the research findings and theoretical insights of social science to litigation. After all, every law and legal institution is based upon assumptions about human nature and the manner in which human behaviour is determined. Although trial lawyers have been using subconscious nonverbal and verbal persuasion techniques for centuries, social science has recently provided empirical support for trial practice theories that heretofore have been based solely on folklore, intuition and experience. I aim to show that principles of human behaviour derived from social psychological laboratory and field research illuminate the behaviour of actors in the courtroom, equip trial lawyers to better represent their clients, and even suggest ways in which the trial system could be improved. Some scholars claim that the increasing body of psychological literature on the effects of subconscious verbal and nonverbal persuasion, has enabled trial lawyers to improve their courtroom effectiveness to the point where they can "covertly" control how fact-finders decide cases. It is true that social scientists have discovered a myriad of factors that affect judicial decision-making, but that have nothing to do with the merits of the case. However, by communicating this information to trial lawyers, the social scientists have actually decreased the likelihood that these extraneous influences will affect judicial decisions. They have identified existing barriers to rational decision-making, and have devised strategies to reduce their impact, and thereby improve the chances that fact-finders will render better, more informed, and more rational judgments.

Exploring the difficult dialogues technique as a tool for value-added law teaching and learning

by | Oct 27, 2019 | SLR, SLR V30 I1

Exploring the difficult dialogues technique as a tool for value-added law teaching and learning

Authors L van Niekerk

ISSN: 1996-2193
Affiliations: Lecturer, Faculty of Law, University of the Free State
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 138 – 151

Abstract

The increasingly rapid pace of change at universities requires lecturers to adapt their teaching techniques to remain attuned to their students. One of the major challenges faced by lecturers in the field of law is to facilitate learning on contentious issues. In this regard, lecturers at the University of the Free State ("UFS"), for example, are challenged to engage their students in discussions on ground-breaking and/or complex issues, which could be controversial and sensitive issues in the classroom. The objective of these discussions is to highlight the relevant legal principles and concepts, but also to teach students how to put their views across in a civil, democratic fashion, thereby sharpening students’ judicial proficiency, critical thinking as well as argumentation skills in their respective law modules. To assist lecturers to achieve this objective in class, this article examines the Difficult Dialogues technique as a tool in contemporary law teaching. The potential benefits of the technique in meeting the critical outcomes stipulated by the LLB Qualification Standard are established. This is then followed by a practical illustration of how discussion on contentious issues may be integrated with a law module to facilitate value-added teaching and learning. It is concluded that the Difficult Dialogues technique can indeed be used to good effect to not only cover the relevant learning content and meet critical LLB outcomes, but also to teach LLB graduates the skill of democratic discussion on complex issues.

Die effek van die abstrakte stelsel van eiendomsoorgang by bateverkope deur ’n kurator van ’n insolvente boedel

by | Oct 27, 2019 | SLR, SLR V30 I1

Die effek van die abstrakte stelsel van eiendomsoorgang by bateverkope deur ’n kurator van ’n insolvente boedel

Authors AL Stander, HJ Kloppers

ISSN: 1996-2193
Affiliations: Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus; Mede-professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 126 – 137

Abstract

The content, meaning and effect of the abstract theory of the transfer of ownership is that the underlying agreement can be irrelevant to the eventual transfer of ownership over a specific asset to another person. What effect can the application of the abstract theory have in insolvency law? Examples to illustrate the relevance of this question are where a person’s appointment as provisional trustee for some reason has not yet taken place, but he has already "sold" an asset from the estate to someone else; or where that person was provisionally appointed, but did not obtain the required consent to sell the asset from the estate; or he did not comply with the instructions of the creditors in connection with the sale of the asset. This position raises the following question: what is the relevance of the abstract theory of the transfer of ownership in insolvency law. According to the authors, the answer to the preceding questions is that if the provisional trustee was indeed properly appointed and authorised at the time of the real agreement, transfer of ownership will take place. This is the position despite the shortcoming in the underlying agreement. What effect does the application of the abstract theory have on the position where that trustee was properly provisionally appointed, but did not obtain the permission explicitly required by the Insolvency Act, to sell the asset from the estate? In such a case, there is indeed a defect in the real agreement, which can also compromise the transfer of ownership. This is also the case where the provisional trustee did not comply with the express instructions of the creditors in connection with the sale of the asset. The crux regarding the questions raised is to determine whether the trustee had valid authorisation or consent of the relevant parties, and only thereafter to assess whether this in any way had an impact on the intention of the parties. This is a consideration of the real agreement – not the underlying contract. This involves assessing all the surrounding circumstances from which the real agreement is derived.

Subcontracting in public procurement – The impact of the 2017 Preferential Procurement Regulations on the Construction Industry

by | Oct 27, 2019 | SLR, SLR V30 I1

Subcontracting in public procurement – The impact of the 2017 Preferential Procurement Regulations on the Construction Industry

Authors AM Anthony

ISSN: 1996-2193
Affiliations: Senior Lecturer at the University of South Africa
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 116 – 125

Abstract

The 2017 Preferential Procurement Regulations brought about vast changes to the legal landscape of construction procurement, specifically with regard to subcontracting. This article evaluates the impact of these regulations and the effect these changes may have on construction procurement and the construction industry at large. Recommendations are made where vacuums in the legal framework are found.

Consumer protection: An overview since 1994

by | Oct 27, 2019 | SLR, SLR V30 I1

Consumer protection: An overview since 1994

Authors Tanya Woker

ISSN: 1996-2193
Affiliations: Professor of Law, University of KwaZulu-Natal (Durban)
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 97 – 115

Abstract

South Africa has a Constitution that is celebrated internationally because it recognises that economic and social rights are just as important as civil and political rights. These rights are legally enforceable rights and since the early days of the newly installed democratic government in 1994, substantial measures have been introduced to promote and advance the social and economic welfare of South Africans. In theory, South African consumers appear to be the best-protected consumers in the world. Unfortunately, the reality is somewhat different. There is a high level of consumer frustration in South Africa which sometimes even translates into violent protest. Despite the government’s best intentions, effective consumer protection remains a distant dream for the majority of consumers. The article considers a three-pronged strategy that is necessary before there can be effective consumer protection: consumers must have knowledge of their rights, consumers must have access to redress, and the law must be enforced. Consumers who are unaware of their rights remain vulnerable and easy prey for exploitation. This poses enormous challenges for the authorities because so many consumers in South Africa reside in remote rural areas. Even if consumers are aware of their rights, it is still extremely difficult for them to enforce their rights. This calls for effective consumer courts in the provinces as well as a well-functioning and effective National Consumer Commission ("NCC"). The NCC is the primary entity established to champion consumer protection and enforce consumer rights in South Africa. The article also calls for the establishment of more specialised ombuds, as ombuds have often proved to be the most effective means of resolving consumer disputes.